Court strikes down efforts to protect marine mammals from sonar

Saying the nation’s interest in training U.S. Navy sailors to practice using sonar “plainly outweighs” the need to protect orcas and other marine mammals, the U.S. Supreme Court today struck down environmentalists’ efforts to restrict sonar use during training exercises.

Writing for the majority in a 5-4 decision, Chief Justice John Roberts made it clear the enviros would have a hard time getting past him in the future on this issue:

Even if plaintiffs have demonstrated a likelihood of irreparable injury, such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. …

The use of MFA sonar under realistic conditions during training exercises is clearly of the utmost importance to the Navy and the Nation. The Court does not question the importance of plaintiffs’ ecological, scientific, and recreational interests, but it concludes that the balance of equities and consideration of the overall public interest tip strongly in favor of the Navy.

The determination of where the public interest lies in this case does not strike the Court as a close question.

The ruling has implications in the Puget Sound region. Cited as part of the environmentalists’ evidence was an incident in the San Juan Islands a few years ago in which the USS Shoup’s use of loud sonar during training caused some marine mammals to flee and others to behave oddly.

The plaintiffs, led by the Natural Resources Defense Council, are of course trying to downplay the significance of the court’s ruling. I missed the phoner with NRDC attorneys, but their news release makes the point that the high court did not accept the Navy’s claims of executive privilege.*

They also seem to be saying they won on several counts, including the enviros’ point that the Navy should have prepared an environmental impact statement. Here’s how NRDC attorney Joel Reynolds made his case in the group’s news release:

This is a narrow ruling that leaves in place four of the injunction’s six mitigation measures that protect marine mammals from harm caused by high-intensity sonar during training. The Supreme Court eliminated two of the injunction’s mitigation measures out of deference to the Navy’s claims that they would impinge on training. The court did not upset the underlying determination that the Navy likely violated the law by failing to prepare an environmental impact statement.

Cupla things to note about that:

The Navy did not challenge the other four conditions.

The high court’s decision in no way says an EIS is required, and in fact went out of its way to say one may not be required:

Plaintiffs’ ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training. There is accordingly no basis for enjoining such training pending preparation of an EIS–if one is determined to be required — when doing so is credibly alleged to pose a serious threat to national security. There are many other remedial tools available, including declaratory relief or an injunction specifically tailored to preparation of an EIS, that do not carry such dire consequences.

*Update 4:05 p.m.: Actually, we meant “executive power.” Here’s the deal: The Navy got the White House Council on Environmental Quality to declare that the training exercises in question were not in violation of various federal environmental laws. The Navy cited this in arguing the case before the Supreme Court. Of course, executive privilege has to do with how much information the administration must give up to Congress or the courts.

Also, I spoke with NRDC attorney Joel Reynolds, who said he believes the ruling is narrowly crafted. He says the Navy sought “essentially a blank check,” a ruling that said “in every case what the military says, goes.” But the high court didn’t bite, Reynolds said:

There are ways the court could have resolved this case that would have had a sweeping impact on environmental law . . . The court didn’t do that.